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Madhya Pradesh High Court · body

2013 DIGILAW 1100 (MP)

Raj Kumar Gautam v. State of M. P.

2013-09-11

K.K.TRIVEDI

body2013
JUDGMENT : This petition was initially filed as Original Application before the M.P. Administrative Tribunal Bench at Bhopal, in the year 1996, which after the closure of the Tribunal has been transmitted to this Court and is registered as writ petition. 2. The petitioner was a Constable in the 25th Battalion Special Armed Forces (hereinafter referred to as SAF for brevity) Bhopal, who was visited with a penalty of compulsory retirement on account of committing misconduct of remaining absent from duty for a long period of 219 days and of not complying with the order of transfer after a departmental enquiry, has challenged the order of penalty in this petition. The charge sheet was issued to the petitioner indicating the aforesaid cause of misconduct and making the allegations. A reply to the charge sheet was filed by the petitioner. The stand taken by the petitioner was that since he was ailing, he made the application by registered post for grant of medical leave supported with medical certificates of the Government Physician and, therefore, was not in a position to comply with the order of transfer nor was in a position to resume his duties. He ultimately resumed the duty on 21.12.1993. The reply of the petitioner was not found satisfactory and a departmental enquiry was conducted by Assistant Commandant of the Battalion, who submitted a report. After receipt of the report, the petitioner was called upon to file an explanation to the findings recorded by the enquiry officer against him. Such an explanation was submitted by the petitioner, but again after considering the same, the disciplinary authority held that the charges levelled against the petitioner were proved, therefore, vide order dated 20.10.1994, the petitioner was compulsory retired from service. The period of absence of the petitioner with effect from 2.4.1993 to 20.12.1993 was treated as no work no pay. 3. The petitioner preferred an appeal against the said order, which was decided by the appellate authority on 24.1.1995. The Deputy Inspector General of Police, SAF, Bhopal, while rejecting the appeal of the petitioner modified the order passed by the disciplinary authority with respect to treating the period of absence of the petitioner as no work no pay and regularised the same by granting leave of the said period to the petitioner. The Deputy Inspector General of Police, SAF, Bhopal, while rejecting the appeal of the petitioner modified the order passed by the disciplinary authority with respect to treating the period of absence of the petitioner as no work no pay and regularised the same by granting leave of the said period to the petitioner. A mercy petition was preferred, but again the same was dismissed on 17.6.1995 by the Director General of Police, therefore, the Original Application was filed. 4. It is, vehemently, contended by learned counsel for the petitioner that the demands were made by the petitioner for supply of certain documents, which though were supplied, but such documents were not certified by a Gazetted Officer, therefore, no reliance could be placed by the petitioner on the said documents. These facts the petitioner has categorically pointed out to the disciplinary authority, but nothing was done. It is further contended that in absence of certified copies of those documents, it was not possible for the petitioner to raise his defence in appropriate manner and thereby the petitioner was denied an opportunity of hearing. As such, the enquiry conducted against the petitioner was bad in law. It is further contended by the petitioner that when these issues were raised in the appeal, the appellate authority mechanically passed the order without application of mind and did not consider the appeal of the petitioner as prescribed under the M.P. Police Regulations. That being so, the orders of penalty and the appellate authority are not sustainable. 5. Per contra, it is contended by learned Deputy Advocate General, appearing for respondents, that by filing a return it has been shown that the enquiry was conducted in appropriate manner as prescribed in the M.P. Police Regulations. The principles of natural justice which prescribe an opportunity of hearing to the petitioner, were duly observed and followed. The petitioner was found absent from duty without any intimation. The enquiry cannot be said to be conducted in violation of any of the provisions of Law and the Regulations. The petitioner could have asked for production of the defence as was raised by him, but no such prayer was made by him. It is wrongly alleged that the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the Rules for brevity) or the provisions of M.P. Police Regulations ((hereinafter referred to as Regulations for brevity) were violated. It is wrongly alleged that the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as the Rules for brevity) or the provisions of M.P. Police Regulations ((hereinafter referred to as Regulations for brevity) were violated. An opportunity of hearing was provided to the petitioner, his statements were duly recorded and it was found by the enquiry officer that evidence in rebuttal was not produced by the petitioner nor he has cross-examined the witnesses examined by the department, evidence as was available was rightly appreciated and misconduct of the petitioner was found proved. Since there is no violation of the Rules or Regulations, in the matter of conducting the enquiry, this Court would not examine the correctness of the order of penalty in exercise of its extraordinary power under Article 226 of the Constitution of India, as the Court is not required to act as an appellate authority. It is contended that the enquiry record which is produced before the Court will show that the defence of the petitioner was rightly considered. In view of this, it is contended that the petition is liable to be dismissed. 6. Heard learned counsel for the parties at length and perused the record. 7. The pleas raised by the petitioner and his counsel may not be sufficient to interfere in the order passed by the disciplinary authority or the appellate authority, but there is a glaring fact which omitted the consideration of all the authorities including the disciplinary authority with respect to the period of absence of the petitioner from duty. From the departmental enquiry record produced before this Court, it is clear that on 21.12.1993, the petitioner gave an application together with copies of medical certificates asking for permission to join back the duty. Even if, the applications made by the petitioner for grant of medical leave were not received by the authorities, it was necessary for the respondents authorities to consider such a prayer for grant of permission to join and to regularise the period of absence either by allowing the application made by the petitioner for grant of leave or rejecting the same and treating the aforesaid period as unauthorised absence. The cause for initiating the departmental enquiry would have arisen only when such an order is passed on the application submitted by the petitioner. The cause for initiating the departmental enquiry would have arisen only when such an order is passed on the application submitted by the petitioner. However, nothing is available in the departmental enquiry record that such an application of the petitioner was decided. The note sheet included in the record of departmental enquiry indicates that certain applications made by the petitioner for grant of leave were received in the office of the Commandant. It is also recorded in the note sheet that applications together with medical certificates were received and were placed in the record. Only this much is said that a notice was sent to the petitioner on 8.9.1993, but what was the content of that notice is not recorded in the note sheet. It is further perceived from the said note sheet that the residential address of the petitioner was not known to the concerned authority and, therefore, no notice could be served on him. The note sheet is silent with respect to the decision on such an application submitted by the petitioner. 8. This being so, it has to be seen that unless the period of absence of the petitioner was treated as unauthorised, by either rejecting his application and directing him to join or to granting leave for certain period with a direction to join immediately, then only, it could have been said that the petitioner was unauthorisedly absent. This particular aspect was required to be considered by the appellate authority as while deciding the appeal of the petitioner, as certain averments in respect of making of applications were made, but the appellate authority has passed the order modifying the order of penalty only to the extent that the period of absence was treated as leave. If the said period is treated as leave and is regularised, whether the impact of the said order would amount to condoning the unauthorised absence and whether on account of that, any charge levelled against the petitioner is said to be proved or not, is not discussed by the appellate authority. Granting of leave means the period is regularised. Therefore, the appellate authority was required to examine this aspect and to pass an appropriate order. Since this has not been done, in the considered opinion of this Court, the appellate Authority has not decided the appeal of the petitioner in appropriate manner and has not passed the order in this respect. Granting of leave means the period is regularised. Therefore, the appellate authority was required to examine this aspect and to pass an appropriate order. Since this has not been done, in the considered opinion of this Court, the appellate Authority has not decided the appeal of the petitioner in appropriate manner and has not passed the order in this respect. 9. It is true that this Court cannot entertain a claim made in respect of challenge to the order of penalties unless it is pointed out that the procedure prescribed in the Regulations or Rules is not followed. It is also true that the power of interference in an order of penalty can be exercised only if it is pointed out that the findings recorded against the employee concerned are not based on any evidence. However, it is also true that this Court can examine whether the appeal preferred by any such employee against the order of penalty is considered in rightful manner by the appellate authority or not. That being so, only interfering in the order of the appellate authority, the matter is remitted back to the first appellate authority with a direction to consider the aspects as referred to herein above, in light of the order passed by the appellate authority in appeal of the petitioner and to pass appropriate orders in the appeal of petitioner afresh. Let it be done within a period of two months from the date of receipt of certified copy of the order passed today. Needless to say, this Court has not interfered in the order of the disciplinary authority. 10. The petition is disposed of accordingly. There shall be no order as to costs.